Monday, March 07, 2011

Freedom of Information and the Public Good

Governor Dannel Malloy, hoping to save some small change, has proposed to fold the Freedom of Information Commission into a new administrative agency that would house the Freedom of Information Commission, the Office of State Ethics, the Elections Enforcement Commission, the Judicial Review Council and the State Contracting Standards Board.

This proposal has run into a buzz saw, particularly as it affects The Freedom of Information Commission.

News publications rely on an independent commission to shine a light on decisions made by various agencies that affect the welfare of the entire state. The possibility of changing decisions that restrict liberty or violate the precepts of justice depends upon a faithful distribution of facts that, in some cases, state agencies hope to thwart.

In most cases, as Sen. Daniel Patrick Moynihan well knew, secrecy is the enemy of good government, which is why, when the state legislature passed the Freedom of Information bill in 1975, it used in describing its intent heroic language that might easily been borrowed from the founders of the country who left their imprint on both the U.S, Constitution and the Bill of Rights.

In passing the bill creating the FOI commission, Connecticut’s legislature affirmed that it was doing so because it understood:

“ … that secrecy in government is inherently inconsistent with a true democracy, that the people have a right to be fully informed of the action taken by public agencies in order that they may retain control over the instruments they have created; that the people do not yield their sovereignty to the agencies which serve them; that the people in delegating authority do not give their public servants the right to decide what is good for them to know and that it is the intent of the law that actions taken by public agencies be taken openly and their deliberations be conducted openly and that the record of all public agencies be open to the public except in those instances where a superior public interest requires confidentiality.”

In his book “Secrecy,” Mr. Moynihan acknowledged that there is a need, particularly in foreign affairs and war, for secrecy and deception. Wishing to strike a cautionary note, even in areas in which it is understood that secrecy is necessary, Mr. Moynihan reached back to political analyst, advisor and diplomat George Kennan, the architect of the “containment” policy the United States employed so effectively against the Soviet Union at the end of World War II.

Kennan warned that those employing secrecy and methods of disinformation, even when advisable, should beware of the "the erection of false pretenses and elaborate efforts to deceive… We easily become ourselves, the sufferers from these methods of deception. For they inculcate in their authors, as well as their intended victims, unlimited cynicism, causing them to lose all realistic understanding of the inter-relationship, in what they are doing, of means and ends."

The freedom of information legislation passed by the General Assembly in 1975 makes the people of the state of Connecticut, not governors and administrations of the public’s business, the custodians of its own public records, and by doing so it sets as a watchdog over a future in which politicians are inclined to steal the liberties of the people a public alert to its responsibilities as citizens.

The end of secrecy is to clothe deeds in darkness, which may, when the liberties of the people are in danger from foreign foes, be a necessary evil. But a putatively democratic government that uses these means to clothe in darkness its own deeds, cannot do so without making an enemy of the people whose general interests it is bound to defend and maintain. And by so doing, by erecting false pretenses and elaborate deceptions, they become themselves, as Mr. Kennan and Mr. Moynihan affirmed “sufferers from their own methods of deception.”

It is one thing to fool by deceptions an enemy in war; quite another, through deception and manipulation, to make an enemy of people who in a healthy democracy one claims to represent. The first should be reluctantly tolerated, the second deplored by democrats everywhere and always. And a Freedom of Information Commission the members of which retain their freedom to embarrass governors and administrations by ripping from their false faces a veil of secrecy they employ to advance their own interests is a necessary means of advancing the cause of justice and democracy among us.

Far from eviscerating the means employed by the Freedom of Information Commission to bring to public notice the misdeeds of public figures, the sometimes feeble powers of the commission should be enhanced, according to past FOI commissioner Andy Thibault, who maintains a blog at Cool Justice Report.

“Increase the maximum fine for FOI violations from $1,000 to $10,000 or more.

“Ensure that those who violate their oaths of office by suppressing public information and are not acting under the color of law pay the fines themselves.

“Require municipalities and state agencies who use taxpayer money to suppress public information to disclose the legal fees they incur on a daily basis.

“Stop the Attorney General’s office from automatically representing state agencies that suppress public information. This could result in significant staff reductions.

“Conduct a comprehensive statewide audit of all the money wasted by municipalities and state agencies to suppress public information. Hint: The FOI law is a tool for this. Because the governor needs those records to do his job, it wouldn’t cost him any money.

“Close loopholes that allow public servants to hide documentation of legal fees they generate, e.g., municipalities or school boards using the cloak of insurance arrangements to hide a virtual welfare state for hack lawyers.

“Vigorously enforce subpoenas compelling public officials to appear before the FOI Commission. If necessary, hire some cops from Wisconsin to tackle them.”